Master Subcontractor Agreement

Now, therefore, in consideration of the mutual covenants and considerations herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Contractor and Subcontractor hereby agree as follows:

1. Contractor and Subcontractor hereby agree that the terms and conditions set forth herein constitute the terms and conditions for all work (the “Work”) commenced by Subcontractor on behalf of Contractor (whether pursuant to a written purchase order, written scope of work, or other written document issued by Contractor setting forth a scope of work to be performed by Subcontractor, or oral agreement) during the one (1) year period commencing on the Effective Date of this Master Agreement. These terms and conditions, however, shall continue in full force and effect in the event the Work proceeds past this one (1) year period.
2. For purposes of this Master Agreement, the following terms shall have the following meanings (in addition to any other terms defined elsewhere herein):
   1. “Project” means and refers to the property on which the Work is or is to be performed.
   2. “Owner” means and refers to the owner of the Project on which the Work is or is to be completed, including any management company of the Owner.
   3. “Prime Contract” means and refers to the contract by and between the Owner and Contractor, including any change orders thereto.
   4. Contract Documents” means and refers collectively
      1. the written purchase order, scope of work, other written document concerning work to be performed issued by Contractor to Subcontractor (in- cluding any change orders),
      2. this Master Agreement,
      3. any drawings and specifications issued by the Owner or its architect (the “Architect”), and
      4. the Prime Contract.
   5. “Contract Price” means and refers to the amount of money to be paid to the Subcontractor as set forth on the purchase order or scope of work from Contractor for the performance of all of the Work set forth in the purchase order or scope of work.
   6. “Vendor Packet” means and refers to the required packet issued by Contractor, to be completed and signed by Subcontractor, which contains, contact information for the Subcontractor, list of required documentation, work site rules, invoicing information, and Contractor’s anti-bribery policy.

3. The Subcontractor is bound, responsible, obligated, and liable to the Contractor as the Contractor is bound, responsible, obligated, and liable to the Owner under the Prime Contract. All Work performed by Subcontractor shall be done under the direction of the Contractor, and to the satisfaction of the Contractor, Owner and Architect. The Work to be performed by the Subcontractor includes that work specifically set forth in any written purchase order, written scope of work, or other written document issued by Contractor describing work to be performed by Subcontractor, as well as any and all other work incidental or related thereto, including but not limited to that work reasonably necessary for a complete and proper Project.
4. Any written scope of work, purchase order, or other written document setting forth a scope of the Work shall be deemed to incorporate by reference and to include all terms and conditions of this Master Agreement. Subcontractor will be deemed to have accepted the Work set forth in any scope of work, purchase order, or other written document from Contractor setting forth or describing work to be performed if, following receipt thereof, Subcontractor
   1. executes the scope of work, purchase order, or other written document setting forth the work,
   2. communicates acceptance of the Work either orally or in writing to Contractor, or
   3. if Subcontractor commences performance of the Work for the specified Project.
5. In accepting the Work, Subcontractor represents that it is familiar with the scope of the Work as reflected in the Contract Documents and is fully familiar with the general conditions of the Project.
6. Subcontractor warrants and represents that all materials and equipment incorporated in the Work shall be new and that the Work shall be of good quality, free from improper workmanship and defects, and in strict conformance with the Contract Documents and all applicable laws, rules, requirements, building codes and regulations of any governmental authorities having jurisdiction over the Work. All permits required in connection with the Work shall be filed at Subcontractor’s sole cost. Subcontractor hereby guarantees the Work against all deficiencies and defects, and agrees to satisfy the same without cost to Owner or Contractor, for a period for a period of one (1) year from the date of the certificate of occupancy of the Project or per Contract Documents, whichever is longer, or such longer period of time as may be prescribed by law. Subcontractor shall obtain all product manufacturer’s warranties and guarantees and deliver same to Contractor prior to, and as a condition of, final payment of the Contract Price.
7. Subcontractor will clean up its work area daily. If the Contractor is forced to clean up after Subcontractor, the cost of such cleanup will be charged to the Subcontractor and deducted from the Contract Price. Subcontractor will be responsible for receiving and storing its materials on the Project. Contractor shall not be liable for damage of any kind to materials or equipment stored on the Project, including but not limited to damage from theft or vandalism. The Subcontractor agrees to, and shall ensure that all employees or contractors of Subcontractor, maintain good conduct and clean appearance while on the Project. Sleeved shirts and long pants are required. Profane language is not permitted on the Project, and any vulgar, explicit, or graphic artwork or wording on work clothing is prohibited. Subcontractor shall further comply with the “Work Site Rules for Contractors” set forth in the Vendor Packet.
8. Subcontractor shall fully comply with all local, federal, and state safety and health laws, rules, ordinances, and regulations (including, but not limited to, OSHA) and follow standard safety procedures, including but not limited to wearing hard hats, safety glasses, and steel-toed shoes. The Subcontractor agrees, when working at industrial plants and/or for Owners who have established rules and regulations and safety programs for contractors and subcontractors, to fully comply with said regulations and programs. Non-compliance will result in immediate ejection from the Project. Subcontractor is fully responsible for their onsite personnel and any fines that could result from their noncompliance with OSHA or any other safety laws and regulations. The Subcontractor shall report within one (1) day to the Contractor any injury to any of the Subcontractor’s employees at the site.
9. Subcontractor shall perform the Work in a timely manner pursuant to any schedule or time frame issued by Contractor, or, if none is provided, Subcontractor agrees to keep the progress of the Work on pace with the progress of the Contractor on the Project as determined by Contractor’s project manager or superintendent.
10. Time is of the essence in the performance of this Master Agreement and the Work. Subcontractor shall take all necessary actions required to remedy any delay due to its own fault, including, without limitation, providing additional forces to perform the Work. Any costs or damages including, but not limited to, attorneys’ fees, incurred by Contractor as a result of Subcontractor’s delay in prosecuting its Work or completing its Work shall be borne by Subcontractor. If Subcontractor is delayed at any time by (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix)
    1. strikes,
    2. fire or flood,
    3. acts of God,
    4. unavailability of, or inability to obtain, labor or materials by reason of acts of any governmental body,
    5. extreme and unusual adverse weather conditions,
    6. stoppage or interruption of the Work ordered by Contractor,
    7. unavoidable casualties or other causes beyond Subcontractor’s control,
    8. discrepancies in the plans and specifications or the Contract Documents, and
    9. changes ordered in the Work (collectively, the “Contemplated Delay”),
    Subcontractor shall only be entitled to extensions of time to complete the Work, and such Contemplated Delay shall not give rise to an increase in the Contract Price or any claim for monetary damages or any extra compensation, and Subcontractor agrees not to make any such claim. Notwithstanding the foregoing, Subcontractor shall be entitled to an extension of time for a Contemplated Delay only to the extent same is granted to Contractor by Owner. With respect to requests for extensions of time associated with discrepancies in the plans and specifications, Subcontractor must report in writing to Contractor any such discrepancies within seven (7) calendar days of the earlier of Subcontractor’s acceptance of the Work.
11. Subcontractor shall have all subcontractor paperwork required by Contractor – including but not limited to the Vendor Packet, W-9, and Certificates of Insurance – completed and returned to Contractor before work can be performed.
12. Subcontractor shall not remove any materials or instruments from the Project at any time without Contractor’s prior consent.

13. Contractor shall make payments toward the Contract Price based on invoices or payment applications submitted by the Subcontractor for Work actually performed and completed to the full satisfaction of the Contractor and Owner.
14. All invoices/payment applications shall be sufficiently detailed to describe the Work or portions of the Work for which payment is sought (e.g., be detailed with unit numbers and all listed completed components performed in each unit, broken down by item).
15. All payments are subject to receipt of such lien waivers, affidavits, warranties, and guarantees required by the Contract Documents or Contractor or Owner.
16. Subject to the conditions herein, Contractor shall make payment to the said Subcontractor thirty (30) days, after the Subcontractor has completed the Work and provided all required documentation for payment.
17. No extra work or changes, including quantum merit, unjust enrichment, or any other legal or equitable claim, will be recognized or paid for unless agreed to in writing before the extra work is commenced or the changes made. Only the project manager and project estimator have the authority to sign change orders. Project superintendents and foremen DO NOT have this authority.
18. Prior to payment, Subcontractor will supply Contractor with a list of all subcontractors and suppliers that Subcontractor contracted with (second-tier subcontractors/suppliers) and subcontractors/suppliers contracting with such second-tier subcontractors (third-tier subcontractors/suppliers), with amounts owed (if any) to such subcontractors and suppliers and contact information. Contractor, at its option, may enter into a joint checking agreement with any and/or all second- tier subcontractors/suppliers and third-tier subcontractors/suppliers, and Subcontractor authorizes Contractor to issue joint checks to Subcontractor and to any second-tier subcontractors/suppliers and third- tier subcontractors/suppliers, at Contractor’s option.
19. No payment shall constitute the acceptance of the Work by the Subcontractor, either in whole or in part, and no payment shall be construed as an acceptance of defective or incomplete Work, and the Subcontractor shall remain responsible and liable for its performance being in strict compliance with the Contract Documents.

20. The Subcontractor shall fully comply with the insurance requirements in the Vendor Packet, as well as any additional insurance requirements by any Owner on a Project.
21. Certificate(s) of Insurance showing required coverage MUST be in Contractor’s office before Subcontractor starts any Work and before any payments are made to Subcontractor.
22. Contractor must be named as “Additional Insured” on the Public/Commercial Liability Policy.
23. The insurance provided by Subcontractor will be primary over any other collectible insurance and Subcontractor (for itself and its insurer) waives all rights of subrogation against Contractor, its agents, and assigns.
24. To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless Owner, Architect, Contractor, and their respective members, officers, directors, shareholders, agents, employees, successors, and assigns (collectively, “Indemnitees”) from and against all losses, claims, costs, damages, and expenses, arising out of or resulting from the performance of the Work, or by Subcontractor’s breach of this Master Agreement. Notwithstanding anything to the contrary herein, Subcontractor is not responsible to indemnify the Indemnitees for damages caused by the sole negligence or intentional conduct of any Indemnitee hereunder.

25. Subcontractor shall not subcontract the performance of all or any part of the Work, or all or any part of its performance under this Master Agreement, without the prior written consent of Contractor, which may be withheld in Contractor’s sole discretion.
26. Subcontractor shall not assign this Master Agreement, any written scope of work or purchase order issued by Contractor, or the performance of all or any part of Subcontractor’s obligations thereunder, without the prior written consent of Contractor, which consent may be given or withheld in Contractor’s sole discretion.
27. Subcontractor shall bind all of its subcontractors/suppliers to all of the terms, provisions, conditions and covenants of this Master Agreement and the Contract Documents.
28. Any consent by Contractor for Subcontractor to subcontract all or any portion of the Work shall not be deemed to create a contractual relationship between Contractor and any subcontractor/supplier of Subcontractor. Further, under no circumstance is any subcontractor/supplier of Subcontractor a third- party beneficiary of this Master Agreement.
29. If, at any time, any lien, notice of lien, or claim of lien of any kind whatsoever is filed on or against the Project (including, without limitation, specifically any claim of lien against real property or any lien on funds) by a subcontractor/supplier of Subcontractor (second-tier subcontractor) or anyone claiming under or through such second- tier subcontractor or under or through the Subcontractor for labor or materials furnished in connection with the Work, Subcontractor shall cause or commence such lien or encumbrance to be canceled and discharged of record by payment, surety or cash bond or otherwise, at Subcontractor’s sole cost and expense, and at no cost to Contractor, by the earlier of: within (i) two (2) business days after notice from Contractor, or (ii) within five (5) business days from the date Subcontractor first learns of the lien.
30. If any lien required to be removed at Subcontractor’s sole cost and expense pursuant to terms hereof is not canceled and discharged of record as aforesaid, Contractor shall have the right to take such action as Contractor shall deem appropriate, and in such event, all costs and expenses incurred by Contractor in connection therewith (including, without limitation, premiums for any bond furnished in connection therewith, and reasonable attorneys’ fees), shall be paid by Subcontractor to Contractor on demand, or, at the option of Contractor, deducted from any payment then due or thereafter becoming due from Contractor to Subcontractor. In addition, in the event any collateral is required by a surety company issuing a bond, or if cash is deposited into court to discharge the lien, the amount of the collateral or amount paid into court shall be deducted from any payments due Subcontractor.

31. If, at any time during the performance of the Work, subcontractor
    1. abandons the Work,
    2. refuses to proceed with the Work when and as directed by Contractor,
    3. disregards laws, ordinances, rules, or regulations pertaining to the Work,
    4. in the sole and exclusive opinion of Contractor cannot complete the Work on the schedule or time frame set by Contractor,
    5. fails to timely discharge any lien required to be discharged by Subcontractor hereunder,
    6. becomes a party to any bankruptcy, insolvency or similar proceeding in a capacity as a debtor,
    7. fails to make any payment due to its subcontractors/suppliers, or
    8. is in default in observing and performing any other of its obligations under this Master Agreement (collectively “events of default” and each an “event of default”),
    Contractor, upon 48 hours’ written notice, may, without prejudice to any other right or remedy Contractor may have, terminate this Master Agreement, or the specific purchase order or written scope of work associated with the Work at issue, at its sole option, on a date specified by Contractor in said notice and/or withhold sufficient funds from and/or due Contractor in order to protect Contractor’s interests, unless Subcontractor cures or corrects the deficiency, breach, defect, or default set forth in said notice within the aforementioned 48-hour period.
32. Upon the occurrence of any event of default above and termination, Contractor may take control of the Work, or any portion thereof, and may take possession of all materials and instruments thereon and, in addition to all other rights and remedies, complete or cause the Work to be completed, by such means, and in such manner, by contract or otherwise, as Contractor deems advisable. Contractor may deduct any costs, expenses and losses it incurs in connection with any default of Subcontractor or termination hereunder from any payment then due or thereafter becoming due to Subcontractor without prejudice to any other remedies Contractor may have. If the amount paid (or to be paid) to complete the Work, plus the direct and consequential costs, expenses, and damages incurred by Contractor due to Subcontractor’s default, is more than any amounts due and owing to Subcontractor at the time of the termination of this Master Agreement, Subcontractor shall pay over the difference to Contractor within five (5) business days after demand by Contractor. If the amount paid (or to be paid) to complete the Work, plus the direct and consequential costs, expenses, and damages incurred by Contractor due to Subcontractor’s default, is less than the amounts due and owing to Subcontractor at the time of the termination of this Master Agreement, Subcontractor shall be entitled to the difference, but not until the Work has been fully completed and accepted by the Owner and Contractor has received final payment for the Work from the Owner.
33. In addition to a termination for an uncured event of default, Contractor may terminate all or any part of the Work or this Master Agreement, without cause, and for its convenience, by giving notice to Subcontractor and reimbursing Subcontractor for the Work completed as of the date of notice by Contractor, plus the reasonable costs of demobilization. Under no circumstances, however, shall Contractor be liable for lost profits, consequential damages, or any amounts for associated with Work not yet performed. In the event a termination of this Master Agreement for an event of default as set forth above is found by court of competent jurisdiction to be wrongful or unjustified, then such termination shall be deemed to have been a termination by Contractor without cause as set forth herein. Upon receipt of any such notice of termination, Subcontractor shall, at Contractor’s option, assign to Contractor, all of the right, title and interest of Subcontractor under any or all subcontracts entered into by Subcontractor in connection with the Work. Notwithstanding the termination for convenience, Subcontractor shall still be responsible for the Work installed to be compliant with the Contract Documents.
34. The remedy of termination hereunder shall be in addition to and not in limitation of any rights otherwise available to the Contractor at law or equity and the exercise of any rights hereunder shall not preclude the exercise of any other rights available to the Contractor at law or in equity. Further, any waiver of any provision of this Agreement by Contractor shall not operate or be construed as a waiver of any other provision or of any subsequent breach or failure of the same provision. Subcontractor shall be liable for all expenses, costs (including, but not limited to, reasonably attorneys’ fees), and damages incurred by Contractor as a result of its breach of the terms hereof and of any termination due to Subcontractor’s default under this Master Agreement.

35. If any provision of this Master Agreement is invalid or unenforceable, the remainder of this Master Agreement shall not be affected thereby and shall remain in full force and effect.
36. This Master Agreement shall be governed by the laws of the State of North Carolina. Subcontractor hereby irrevocably consents, for itself and its legal representatives, partners, successors and assigns, to the jurisdiction of the courts of the State of North Carolina for all purposes in connection with any action or proceeding which arises from or relates to this Master Agreement.
37. It is expressly understood and agreed by the parties hereto that Subcontractor shall be deemed an independent subcontractor and not an agent or employee of Contractor and nothing contained in this Master Agreement shall be construed to mean that Subcontractor and Contractor have any joint venture or partnership relationship.
38. It is expressly understood and agreed that nothing contained herein shall be construed to require Contractor to utilize Subcontractor on any particular project or be obligated to offer work to Subcontractor on any particular project.
39. Except as otherwise set forth expressly herein, all obligations of Subcontractor shall survive the completion or termination of the Work and any termination of this Master Agreement.
40. All notices hereunder shall be in writing and shall be deemed made:
    1. upon hand delivery, receipt required,
    2. the next business day after deposit with a nationally recognized overnight courier service, or
    3. when transmitted via email or facsimile, provided a copy is sent the next business day by method (a) or (b) or by regular first-class U.S. Mail.
    All notices shall be addressed as follows:

    To Contractor: Night Owl Companies, Inc.
    6809 Orchard Ridge Dr. Charlotte, NC 28227
    Email: [email protected]
    

Each party may designate such other address for notices to the other, so long as the notice of change of address is provided in accordance herewith.

This Master Agreement may be executed in multiple, separate counterparts, and such counterparts shall constitute one and the same document. This Master Agreement may not be modified or amended except by a writing signed by both Contractor and Subcontractor.